The opinion of the court was delivered by: MCCURN
MEMORANDUM - DECISION AND ORDER
In this action for declaratory, injunctive and monetary relief brought under the Indian Civil Rights Act (ICRA), 25 U.S.C. § 1302 and 42 U.S.C. § 1983, plaintiffs, who are individual members of the St. Regis Mohawk Tribe, seek to represent a class consisting of all members of the Tribe who are being aggrieved by certain alleged acts of the defendant elected Tribal leaders.
The case is presently before the Court on plaintiffs' motion for a preliminary injunction and defendants' motion to dismiss pursuant to Rule 12(b)(1) and (6) on the grounds that the Court lacks jurisdiction over the subject matter or alternatively for failure to state a cause of action. At oral argument on the motions, held on May 13, 1980, the Court advised the parties, that since a decision in defendants' favor on their motion to dismiss would be dispositive of the action, a determination on that motion would be made before a hearing was scheduled on plaintiffs' request for injunctive relief.
Defendants Rudolph Hart, Reginald White and Leonard Garrow are nominal chiefs of the St. Regis Mohawk Tribe. Defendants Cecil Garrow and Francis Arquette are nominal sub-chiefs of the Tribe and defendant Leonard Beaubien is the nominal clerk.Each was elected to office by the Tribal membership pursuant to the New York State Indian Law § 110.
On March 8, 1980, a recall vote was held and each of the defendants was voted out of office. The defendants, however, refused to step down. The State Indian Law does not contain any provision for recall votes. According to the plaintiffs, the defendants advised them that they would accept the decision of the tribal membership at a second recall vote to be held at the March 29, 1980, Tribal meeting. At that meeting, the defendants were again voted out of office and again refused to step down.
Plaintiffs allege that the defendants, prior to the March 29th meeting, threatened the plaintiffs and their families with physical injury or loss of employment if they attended the recall meeting. In addition, plaintiffs claim that actual physical assaults have been made on members who did participate in the recall vote.
The plaintiffs further assert that the defendants have refused to meet with them to attempt to work out the problems which quite clearly exist within the Tribe and have denied plaintiffs access to the Tribal meeting rooms through the use of an armed Tribal police force. Finally, plaintiffs contend that the defendants have threatened to terminate the receipt of federal funds, over which they as Tribal officials have control if plaintiffs continue to press for their removal.
In bringing this action, plaintiffs seek a declaration from the Court that the acts of the defendants complained of and set forth above, are illegal and unconstitutional as in violation of the ICRA as well as the plaintiffs' rights to freedom of speech, association, assembly, privacy, movement and petition granted under the First, Fourth, Fifth and Fourteenth Amendments to the constitution of the United States.
Plaintiffs also ask the Court to enjoin the defendants from subjecting the plaintiffs to violence; from illegally arresting or detaining or in any manner limiting their freedom of movement except upon a legally executed arrest warrant; and from using their offices to manage federal funds so as to control the plaintiffs' exercise of their constitutional rights. Plaintiffs, in addition to seeking declaratory and injunctive relief, demand an award of compensatory damages of $10,000.00 each.
Plaintiffs seek relief under both the ICRA and 42 U.S.C. § 1983 alleging jurisdiction pursuant to 8 U.S.C. § 1401(b)
and 28 U.S.C. § 1343.
In moving for dismissal of the complaint, defendants contend, and this Court agrees for the reasons set forth below, that no cause of action is available to the plaintiffs in this case under either the ICRA (25 U.S.C. § 1302) or 42 U.S.C. § 1983.
The Indian Civil Rights Act
The ICRA was enacted by Congress as a rider to the Civil Rights Act of 1968.Passage came as a result of Congressional investigations, hearings and studies which were commenced in 1961 in response to reports of the frequent denial of individual constitutional rights by tribal governments, particularly in the administration of tribal justice. See generally Burnett, An Historical Analysis of the 1968 'Indian Civil Rights' Act, 9 Harv.J. on Leg. 557 (1972).
Indian tribal governments "have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority," Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, 98 S. Ct. 1670, 1676, 56 L. Ed. 2d 106 (1978), and Title II of the ICRA at 25 U.S.C. § 1302 "rather than providing in wholesale fashion for the extension of constitutional requirements to tribal governments, as had been initially proposed, [Congress] selectively incorporated and in some instances modified the safeguards of the Bill of Rights to fit the unique ...